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School Nurse Immune from Suit After Examining Child's Genitalia

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By William Peacock, Esq. on March 27, 2013 5:25 PM

Six-year-old B.H. went to the school office, twice in three days, complaining of irritation in her genital area and that it "burned" when she urinated. The initial visit to the office led to a phone call with the girls' mother, who informed the school that her daughter had issues with chronic bladder infections. The second visit led to a trip to the school nurse.

Nurse Sliwowski, one of the defendants in this case, took B.H. to the faculty restroom, and with the school secretary present, performed a medical examination of B.H., including of her genitalia. At no point did she actually touch the girl - the exam was purely visual and was done to locate any signs of redness or irritation. There was also no suspicion of child abuse.

The examination was, in retrospect, the wrong move. Not only do national and state nursing guidelines advise against medical examinations of students' genitalia absent a medical emergency or parental consent, but according to B.H.'s mother, the examination left the girl "confused, humiliated, and frightened."

It also resulted in a lawsuit, alleging violations of the Fourth Amendment prohibition on unreasonable search. The lower court denied qualified immunity to Sliwowski, stating that B.H.'s Fourth Amendment rights were clearly violated and that the law was clearly established at the time of the exam.

The Sixth Circuit, however, disagrees.

Was it a 'Search'?

This all comes down to searches versus medical examinations. The two are not necessarily one and the same. Prior cases have dealt with strip searches for stolen money and surveillance of locker rooms. Students' fundamental dignity of their naked bodies is obvious. When it comes to non-medical searches, the Fourth Amendment definitely applies.

However, there is another line of cases that state that improper, excessive, or negligent medical care does not fall under the Fourth Amendment's unreasonable search protections.

Is Qualified Immunity Appropriate?

No Sixth Circuit or SCOTUS case deals with a purely medically-motivated exam. The lower court relied upon out-of-circuit cases, which can only establish a right in "extraordinary case[s]" where the decisions "point unmistakably to the unconstitutionality of the conduct" and are "clearly foreshadowed by applicable direct authority."

The three cases cited dealt with an exam relating to suspected child abuse (not on point), a strip search for stolen money (really not on point) and a medical exam of the genitalia of preschool students (quite on point). Only the third case applied, yet its holding conflicts with other circuits' decisions and was not clearly foreshadowed by prior cases.

Given that the issue has not been addressed by the Sixth Circuit or SCOTUS, and that there is no clear consensus among the other circuits, it would be impossible for Sliwowski to know of, and violate, a "clearly established" right. Qualified immunity, therefore, applies.

Note that the court did not decide the Fourth Amendment issue here. The holding is merely that the issue is unclear, and therefore, Sliwoski is immune from being sued. The district, however, could still be liable.

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